Return to CALJIC Part 5-8 – Contents
F 8.42 n1 Cultural Background Relevant As To Heat Of Passion (PC 192(a)).
(See FORECITE F 4.031 n1.)
RESEARCH NOTE: Cultural Defense of False Stereotype? What Happens When Latina Defendants Collide With the Federal Sentencing Guidelines, K.L. Holmquist, 12 Berkely Women’s L.J. 45-72, 1997.
F 8.42 n2 Heat Of Passion: Battered Woman/Child Syndrome (PC 192(a)).
See FORECITE F 9.35.1.
[Research Note: See FORECITE BIBLIO 8.42]
F 8.42 n3 Heat Of Passion: Objective Standard In Light Of Defendant’s Past Experience (PC 192(a)).
ALERT: The California Supreme Court reversed the defendant’s voluntary manslaughter conviction for failure to allow expert testimony regarding Battered Women’s Syndrome (BWS) in People v. Humphrey (96) 13 C4th 1073 [56 CR2d 142] UNPUBLISHED below (F020267). [NOTE: The appellant’s briefing in the Supreme Court in Humphrey; see Brief Bank # B-656].]
Even though heat of passion imposes an objective standard of reasonableness, that standard must be evaluated in light of the experiences of the individual defendant. (See e.g., FORECITE F 5.12a: antecedent threats to the defendant justify quicker and harsher measures in self-defense.) Hence, battered woman syndrome evidence should be considered by the jury to determine “whether the defendant had reasonable grounds for an honest belief that she was in imminent danger when considering the issue of self-defense.” (State v. Koss (90) 551 N.E.2nd 970, 973-74; see also State v. Kelly (N.J. Supreme Ct. 1984) 478 A.2d 364, 375-78; State v. Leidholm (N.D. 1983) 334 NW3d 811; State v. Hennum (Minn. 1989) 441 NW2d 793.)
Moreover, the California Supreme Court has recognized the relevance of “subjective state of mind evidence” to proof of an objective standard. In People v. Ochoa (93) 6 C4th 1199 [26 CR2d 23], the court first noted that the offense of gross vehicular manslaughter while intoxicated requires proof under an “‘objective'” standard: “‘whether a reasonable person in the defendant’s position would have been aware of the risk involved. [Citations].'” (Id. at 1204.) However, in satisfying this objective test, the prosecutor is entitled to introduce evidence of the defendant’s “subjective state of mind ….” (Id. at 1205.) This rule is justified on the theory that subjective knowledge is relevant to the objective question of “whether a reasonable person in defendant’s position would have been aware of the risks, ….” (Ibid., emphasis in original; see also FORECITE F 5.12a.)
In light of this reasoning, it necessarily follows that evidence of battered woman syndrome is admissible to prove the objective reasonableness of the defendant’s conduct. To the extent that the subjective knowledge of the defendant is relevant to a determination under a reasonable person standard, Ochoa compels this result.
[See Brief Bank # B-608 for additional briefing and citation to other out-of-state cases.]
Instruction Package Available: [See Instruction Bank # I-858 for a package of instructions drafted by FORECITE subscriber Christie Warren relating the victim’s character and prior violent acts to self-defense.]
[Research Note: See FORECITE BIBLIO 8.42]
F 8.42 n4 Heat Of Passion: Evidence Necessary.
In order to obtain an instruction on heat of passion, the defendant must present evidence as to the lapse of time between the provocative act and the killing. (People v. Dixon (95) 32 CA4th 1547, 1550-58 [38 CR2d 859].
F 8.42 n5 Heat Of Passion: Defense Theory Of Accident Does Not Preclude Instruction On Provocation.
It is well settled that the defendant has a right to instruction on inconsistent defenses. (See FORECITE PG V(K).) Hence, a defense theory of accident “does not free the court from the duty of instructing on the partial defense of provocation….” (People v. Middleton (97) 52 CA4th 19, 34 [60 CR2d 366]; see also People v. Wickersham (82) 32 C3d 307, 328 [185 CR 436] [“the jury was entitled to reject that portion of appellant’s testimony which sought to explain the shooting as an accident and still find that appellant had not acted with malice”].)
F 8.42 n6 Heat Of Passion: Provocation From A Party Other Than The Victim.
The comment to CJ 8.42 states that provocation can only serve to reduce murder to manslaughter when the victim actually initiated the provocation in reliance upon People v. Spurlin (84) 156 CA3d 119, 126 [202 CR 663], People v. Superior Court (Henderson) (86) 178 CA3d 516, 524 [223 CR 741]; In re Thomas C. (86) 183 CA3d 786, 798 [228 CR 430]. However, in light of the California Supreme Court Opinions in People v. Humphrey (96) 13 C4th 1073 [56 CR2d 142] and People v. Minifie (96) 13 C4th 1055 [56 CR2d 133] the defendant’s state of mind, not the conduct of the victim, determines whether a particular defense or mitigation may be applicable. (See also People v. Brooks (86) 185 CA3d 687, 694 [230 CR 86] [defendant’s belief, even if mistaken, that victim had killed defendant’s brother is adequate provocation]; People v. Scott (83) 146 CA3d 823, 831-32 [194 CR 633] [hallucinatory delusion could provide an absolute defense of necessity where defendant attempted to steal a car based upon drug-induced belief that he was saving the life of the president].) [See Brief Bank # B-714 for additional briefing on this issue.]
F 8.42 n7 Improper To Instruct On “Homicidal Reaction.”
In People v. Lee (97) 54 CA4th 559, 562 [63 CR2d 387] the court gave the following instruction at the request of the prosecution:
“The concept of ‘sudden quarrel or heat of passion’ allows a defendant to reduce a killing from murder to manslaughter only in those situations where the provocation would trigger a homicidal reaction in the mind of an ordinarily reasonable person under the same facts and circumstances. [Citations.]”
The Court of Appeal held this to be reversible error because the jury could have construed the term “homicidal reaction” to mean “murderous reaction” which would necessarily have precluded a finding of manslaughter due to the presence of malice.
F 8.42 n8 Duty To Instruct On Heat Of Passion When Defendant Has Not Testified.
In People v. McKelvey (87) 194 CA3d 694, 701-07 [239 CR 782], the lead opinion of Kline, P.J. declared that an actual, but unreasonable belief in the need for self-defense negated the malice required for a conviction of mayhem (PC 203), mitigating the crime to assault or battery. The opinion concluded that a Flannel-type instruction (People v. Flannel (79) 25 C3d 668 [160 CR 84]) should be given sua sponte in mayhem cases where there was more than minimal evidence of self-defense. (People v. Castillo (87) 193 CA3d 119, 126 [238 CR 207].) Hence, even if the defendant did not testify, the trial court has a sua sponte duty to give heat-of-passion instruction if there is substantial evidence in support of such a theory notwithstanding the absence of the defendant’s testimony. (See People v. Brooks (86) 185 CA3d 687, 696 [230 CR 86].)
F 8.42 n9 Failure To Instruct On Heat Of Passion In A Voluntary Manslaughter Case Is Not Prejudicial.
Provocation is a matter which usually is raised by a defendant and which functions to mitigate an intentional killing from murder to manslaughter. In a voluntary manslaughter case, the failure to instruct on heat of passion actually adds to the prosecution’s burden by requiring the prosecutor to prove the greater offense of murder, i.e., a wholly unmitigated killing. Hence, the failure to instruct on provocation was not prejudicial error. (People v. Rios (2000) 23 C4th 450, 470 [97 CR2d 512].)
F 8.42 n10 Heat Of Passion: Objective Standard.
PC 192 must be read together with PC 188, which implies malice “when no considerable provocation appears.” California Supreme Court cases have long and continuously held that whether the provocation is considerable enough to negate malice must be judged objectively. (E.g., People v. Wickersham (82) 32 C3d 307, 326 [185 CR 436]; People v. Logan (1917) 175 C 45, 49 [164 P 1121]; People v. Valentine (46) 28 C2d 121, 136-44 [169 P2d 1] [reaffirming the objective standard after a thorough review of PC 192 and its history]; see also People v. Steele (2002) 27 C4th 1230, 1251-55 [120 CR2d 432].) However, “although the ultimate test of reasonableness is objective, in determining [what] a reasonable person in defendant‘s position would have [done], the jury must consider all of the relevant circumstances in which defendant found [himself].” (People v. Humphrey (96) 13 C4th 1073, 1083 [56 CR2d 142].)
F 8.42a
Heat Of Passion: Sufficiency Of A Series Of Events Over A Period Of Time
(PC 192(a))
*To be added to CJ 8.42 in lieu of last bracketed sentence of ¶ 2:
A defendant may act in the heat of passion at the time of killing as a result of a series of events which occur over a considerable period of time.
Where the provocation extends for a long period of time, take such period of time into account in deciding whether there was a sufficient cooling period for the passion to subside.
The burden is on the prosecution to establish beyond a reasonable doubt that the defendant did not act in the heat of passion.
Points and Authorities
In People v. Thompkins (87) 195 CA3d 244, 256-57 [240 CR 516], the court concluded that the defendant has the right to an instruction such as the one set forth above upon request when the evidence warrants it.
In People v. Wharton (91) 53 C3d 522, 569-71 [280 CR 631], the Supreme Court held that ¶ 1 should be given on request. The Wharton court held that ¶ 2 was argumentative because it stated that the jurors “must” consider the evidence. Similarly, People v. Rupe (88) 206 CA3d 1537, 1542-43 [256 CR 126] has criticized language which tells the jury it “must” take into account the extended period of provocation. The instruction set forth above answers the Wharton and Rupe concern by changing “must” to “may.” (Rupe at pp. 1542-43; see also Rucker & Overland, California Criminal Forms & Instructions § 43:30; Ackley, Criminal Defense Instructions, Instruction M-11.4, p. 182.)
Wharton did not address the propriety of ¶ 3 but the right to such an instruction is supported by the settled rule that upon request the defendant is entitled to an instruction relating the defense theory of the case to the prosecution’s burden of proof. (People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600]; People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711]; People v. Harvey (84) 163 CA3d 90, 112-13 [208 CR 910].)
In its January 1992 pocket part CALJIC modified CJ 8.42 based on People v. Wharton (91) 53 C3d 522, 571 [280 CR 631]. However, the CALJIC proposal does not clearly convey the concept that a defendant may act in the heat of passion as a result of a series of events which occur over a considerable period of time. The CALJIC instruction merely states that “legally adequate provocation may occur in a short, or over a considerable, period of time.” Besides being grammatically cumbersome, this language does not discuss the impact of a series of events over time. (See e.g., People v. Berry (76) 18 C3d 509 [134 CR 415].) Moreover, the CALJIC instruction does not provide any additional language regarding the prosecution’s burden with respect to heat of passion. Therefore, the instruction above proposed should be utilized in lieu of the modified CALJIC instruction.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
F 8.42b
Heat Of Passion: Burden Of Proof
(PC 192(a))
*To be added at end of CJ 8.42:
If you have a reasonable doubt as to whether malice was negated by heat of passion resulting from sufficient provocation, you must find that there was no malice.
Points and Authorities
When the defendant relies upon evidence of heat of passion, he/she raises a factual issue which, if established, would negate proof of an essential element of the offense — i.e., malice. The jury instructions should relate the burden of proof to such material factual issues. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see also FORECITE PG III(D)&(E).) Accordingly, as with other specific evidentiary showings that go to an element of the offense (e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15), the defendant has a right, upon request, to instruct the jury that he “need only raise a reasonable doubt as to the existence or non-existence of the fact in issue.” (See People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 8.42c
Heat Of Passion: No Presumption Of Murder
(PC 192(a))
*Modify lines 1 & 2 of ¶ 1 and ¶ 2 and the last line of the last paragraph of CJ 8.42 to provide as follows [added language is capitalized; deleted language is between <<>>:
To <<reduce an intentional felonious homicide from the offense of murder to manslaughter>> NEGATE MALICE upon the ground of sudden quarrel …
The heat of passion which will <<reduce a homicide to manslaughter>> NEGATE MALICE must be such …
***
If there was provocation, but of a nature not normally sufficient to arouse passion, or if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful killing of a human being followed such provocation and had all the elements of murder, as I have defined it, the mere fact of slight or remote provocation will not <<reduce the offense to manslaughter>> NEGATE MALICE.
Points and Authorities
The current language of the CJ heat of passion instructions are phrased in terms of reducing the homicide from murder to manslaughter. Use of this language is a problem for two reasons.
First, the jury is effectively advised that it should presume the offense was murder unless it is convinced to “reduce” it. This impermissibly slants the issue towards the prosecution in much the same way as the defect noted in CJ 10.46.2 in People v. Owens (94) 27 CA4th 1155, 1158-59 [33 CR2d 354]. In Owens, the court agreed that the phrasing, “The people have introduced evidence tending to prove …” in CJ 10.46.2 conveyed to the jury the impression that the court believed that evidence. In effect, the defect noted by the Owens court created an inference that a certain aspect of the case had been proved to the satisfaction of the court, and that kind of impact on the prosecution’s burden to prove every essential element is much the same as the impact of an instruction which infers the jury should presume the case is murder unless convinced otherwise. The fact that this concept is an accurate statement of the law is no answer to the problem. Instructions which accurately state the law but pose the risk of confusing or misleading the jury are improper. (See e.g., People v. Lasero (88) 44 C3d 1006, 1021 [245 CR 185]; Delos v. Farmers Insurance (79) 93 CA3d 642, 656 [155 CR 843] [judicial opinions are not written to be jury instructions and are notoriously unreliable as such].) These instructional defects create an impermissible inference in favor of the prosecution in violation of settled constitutional principles.
Second, the CJ language has the likely effect of setting an order of deliberations for the jury. By suggesting that they should presume the killing was murder unless convinced otherwise, the logical starting point for the deliberations would be on the question of whether the killing was murder. This is precisely the kind of extrinsic ordering of deliberations which has been condemned by the California Supreme Court. (See People v. Kurtzman (88) 46 C3d 322, 329-31 [250 CR 244].) For this reason as well the CJ instruction should be modified as set forth above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-636.]
F 8.42d
Modification When Crime Involves Fetal Victim
*Modify CJ 8.42 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
F 8.42e
Heat Of Passion: Consideration Of Defendant’s Culture
*Add to CJ 8.42 when appropriate:
The [defendant] [and] [or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own.
Points and Authorities
In People v. Humphrey (96) 13 C4th 1073 [56 CR2d 142], the California Supreme Court approved the use of expert testimony on the issue of the reasonableness of a defendant’s belief in the need for self-defense. The evidence of battered women’s syndrome is relevant “‘to explain a behavior pattern that might otherwise appear unreasonable to the average person. Evidence of [battered women’s syndrome] not only explains how a battered woman might think, react, or behave, it places the behavior in an understandable light.'” (Id. at p. 1088 quoting People v. Day (92) 2 CA4th 405, 419 [2 CR2d 916].) If evidence of battered women’s syndrome is admissible to make the battered woman’s peculiar behavior in relation to her batterer understandable to the average person, then cultural evidence should be admissible for the purpose of explaining how a person of another culture might react violently to a word, gesture, or some other form of provocation that might not provoke a violent reaction in the average “white” person. (See Humphrey, supra]; see also People v. Wu DEPUBLISHED (91) 235 CA3d 614 [286 CR 868] [defendant’s cultural background relevant on issue of premeditation and deliberation]; Ha v. Alaska (AK 1995) 892 F2d 184, 195 [Vietnamese culture was a proper matter for the jury to consider in evaluating the defendant’s self-defense claim].) [See Opinion Bank # O-117 for the Wu opinion.]
See Brief Bank # B-889 for briefing on this issue.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 8.42f
Heat Of Passion: Applicability To Aider And Abettor
(See FORECITE F 3.01p.)
F 8.42g
Torture: Cautionary Instruction Regarding Severity Of Wounds
*Add to CJ 8.42:
(See FORECITE F 9.90a.)